Six Death Row prisoners lined up for execution in Arkansas by the end of this month want an appeals court to decide on their claim that the tight timetable would violate "evolving standards of decency".
US District Judge Kristine Baker granted the inmates stays of execution on Saturday, but she rejected their arguments that too little time between executions violated their constitutional rights.
Lawyers for the state appealed against the judge's ruling immediately with the hope of beginning the executions today.
The state, which has not carried out a death sentence in 12 years, had originally wanted to execute eight inmates between today and April 27. The fast-paced schedule of executions was planned in order to beat the expiration date on its batch of one of the drugs used in its lethal injection cocktail.
This fast-paced schedule of executions was planned in order to beat the expiration date on its batch of one of the drugs used in its lethal injection cocktail.
Arkansas uses potassium chloride in combination with vecuronium bromide and midazolam. The latter drug is intended to render the inmate unconscious before the other two chemicals are administered to paralyse the lungs and stop the heart. Governor Asa Hutchinson has said the state must act quickly because the efficacy date for midazolam expires at the end of the month.
But Judge Wendell Griffen, an outspoken opponent of capital punishment, issued an order blocking the state from using a second drug, vecuronium bromide, after a petition from its maker, McKesson Medical-Surgical Inc.
The company said the Arkansas prison system failed to return a supply of the drug when it learned the state intended to use it for executions, a violation of an understanding between the two, according to McKesson. “As a public opponent of capital punishment, Judge Griffen should have recused himself from this case," said spokesman for the attorney general, Judd Deere.
Two other drug makers on Thursday asked a federal court to block Arkansas from using their drugs for upcoming executions, claiming that doing so would violate contractual controls and create a public health risk, court documents showed. The companies did not disclose which of their drugs Arkansas will use during the executions.
In its filing yesterday, the inmates' legal team said the 8th US Circuit Court of Appeals should review Judge Baker's decision to reject part of their arguments.
The lawyers said it was wrong for her to decide the inmates "did not establish a significant possibility of success on the merits on their claim that the compressed execution schedule is contrary to the evolving standards of decency".
The judge had said while the Supreme Court has made reference to evolving standards, particularly when "punishments are so disproportionate as to be cruel and unusual," the Arkansas death row inmates were unlikely to prevail.
The attorney general's office says it will respond to the filing after full arguments are put before the appeals court.
Judge Baker said while the state demonstrated it does not plan to torture the inmates, they had a right to challenge the method of execution in an attempt to show it "creates a demonstrated risk of severe pain".
Two prisoners having been issued stays of execution, the six remaining executions are on hold after Judge Baker's order and because a state circuit judge in Little Rock ordered the state not to use a lethal injection drug until questions are settled on how the state obtained it.
That judge, Pulaski County Circuit Judge Wendell Griffen, has come under fire for taking part in anti-death penalty protests the same day after issuing his order stopping the use of the drug.
Arkansas has asked that the state Supreme Court reverse its decision halting the execution of Bruce Earl Ward, which was set for today.
If it fails there, it can appeal to the US Supreme Court. The state is also seeking to overturn Judge Griffen's order regarding the state's supply of vecuronium bromide.
The eighth Circuit could take up the appeal of Judge Baker's order at any time. Any decision there would likely also be appealed to the US Supreme Court.